In this report, Vanguard’s Law & Human Rights digs out factors responsible for the delay in the inauguration of 11 new justices of the Supreme Court almost two full months after the Nigerian Senate had confirmed their appointment.

Background

On December 21, 2023, the Nigerian Senate approved a list of 11 new justices for the Supreme Court of Nigeria, SCN.

The senators had cleared the justices at the plenary through a voice vote after the Chairman of the Committee on Judiciary, Mohammed Monguno (APC, Borno), reported that his committee received the curriculum vitae of the nominees, invited them for screening and found that they demonstrated inspiring competence required for the performance of their assignment.

Monguno also noted that the nomination and appointment satisfied the constitutional provision of section 231 (3) of the Constitution which states that an individual needs 15 years experience in the bar to be qualified for appointment into the Supreme Court bench.

He said there were no petitions or criminal records against any of the nominees and that the committee members were satisfied with the nomination of the justices and, therefore, recommended their confirmation.

The list of the justices was sent to the upper chamber of the National Assembly by President Bola Tinubu following recommendation of the candidates by the National Judicial Council, NJC from the shortlist received from the Federal Judicial Service Commission, FJSC for the top job.

On the recommended list were Haruna Tsammani representing the North-East; Moore Adumein (South- South); Jummai Sankey (North-Central); Chidiebere Uwa (South-East); Chioma Nwosu-Iheme (South-East) and Obande Ogbuinya (South-East).

Others were Justices Stephen Jona Adah (North-Central); Habeeb Abiru (South-West); Jamilu Tukur (North- West); Abubakar Umar (North-West);  and Mohammed Idris (North-Central).

Section 231 (2) of the 1999 Constitution of the Federal Republic of Nigeria spells out the process of appointing justices for the SCN.

The section provides: “The appointment of a person to the office of a Justice of the Supreme Court shall be made by the President on the recommendation of the NJC, subject to confirmation of such appointment by the Senate.

By implication, both the executive and the legislature play distinct roles in appointing justices for the apex bench.

The appointment process into the Supreme Court bench would be inchoate until the two other arms of government have fully played their roles as spelt out in the constitution.

But almost two months after the justices were cleared by the Senate and more than two years when the Supreme Court has been itching to get more competent hands to fill vacant seats in the court, the 11 new justices are yet to be inaugurated.

The Supreme Court has kept mum on the issue ditto for the Presidency in spite of the alarm raised by a retiring justice of the Supreme Court, Justice Dattijo Muhammad on October 27, 2023, in Abuja that with his exit, the number of justices serving in the apex court had dropped to 10, its lowest in the contemporary history of the court.

The Chief Justice of Nigeria, CJN, Justice Olukayode Ariwoola had himself consistently lamented that the apex court has been battling with workload crisis arising from manpower shortage, explaining that the situation gets worse for the third arm of government because in every little disagreement, Nigerians rushed to court and in every lost case, they rushed to appeal even up to the Supreme Court, no matter how little the issue might be.

He had said that alone had obviously accounted for the several appeals pending in the Supreme Court, adding that though the court received scathing criticisms from members of the public over its over-bloated docket, yet the institution is neither in any position to regulate case inflow to the court nor has the supernatural powers to attend to all in one-fell-swoop.

What is delaying the inauguration of the 11 new justices?

Vanguard’s Law & Human Rights’ investigation revealed that the 11 new justices are yet to be inaugurated simply because the Supreme Court was having challenges providing them with the required working tools.

According to an impeccable source at the Supreme Court who spoke with Vanguard on condition of anonymity, the justices’ inauguration was deliberately delayed.

His words: “You were aware some justices of the Supreme Court were sworn in on November 6, 2020. As tradition demanded, they were supposed to be given three assorted brand new cars each: A Mercedes Benz, a Land Cruiser and one utility vehicle.

“But at that time, the justices of the Supreme Court were given only a Land Cruiser which some critics said were refurbished. A Hilux was added after one year while the Mercedez Benz was late in coming. Because of the breach of that tradition, hell was let loose.

“We want to avoid such unnecessary bad image for the Supreme Court this time around. What is sure is that the justices have been appointed already. The Senate has given approval. That approval cannot be withdrawn.

“All that is left now is for necessary working tools to be provided. We do not want to inaugurate them without providing the necessary things that may attract bad press for the institution,” the source added.

The source also told Vanguard that apart from the issue of cars, accommodation was another.

“You will agree with me that the issue of accommodation for serving justices of the Supreme Court has been a recurring challenge.

“This is the first time we are having a full complement of 21 justices. They can’t live in the air. They must be made comfortable. The Supreme Court will have to acquire apartments for them.

“I can confirm to you that the Supreme Court has gone far. But the court is yet to get comfortable accommodation for all of them.

“Until that one is sorted out, they may have to tarry,” he said.

Another source and member of the Federal Judicial Service Commission, FJSC, who also pleaded anonymity, told Vanguard Law and Human Rights that the affected new justices have been asked to use the opportunity of the delay in inaugurating them to quickly conclude all outstanding cases they have at the Court of Appeal on the account that they would not have the opportunity of going back to sit on such cases as justices of the Court of Appeal.

The source reminded Vanguard of what happened sometime in May 2020 when the Supreme Court, in a unanimous decision by a seven-man panel of Justices led by Justice Bode Rhodes-Vivour (now retired), nullified the entire proceedings that led to the conviction of a federal lawmaker representing Abia North Senatorial District, Dr Orji Uzor Kalu, his company—Slok, and a former Director of Finance in Abia State, Jones Udeogu, for allegedly using the firm to defraud the Government of Abia State in the eight years Kalu held sway as governor of the state.

Vanguard indeed recalled that the Supreme Court had in the lead verdict that was read by Justice Ejembi Eko, held that the trial High Court Judge, Justice Mohammed Idris, acted without jurisdiction in the case when he convicted Kalu, his firm, Slok Nigeria Limited and a former Director of Finance in Abia State, Jones Udeogu since he was no longer a judge of the Federal High Court as at December 5, 2019, when he sat and delivered the judgement that convicted the defendants for allegedly stealing about N7.1billion from Abia State treasury.

According to the Supreme Court, Justice Idris, having been elevated to the Court of Appeal before then, lacked the powers to return to sit as a High Court Judge.

It held that the Fiat that was issued to him by the Court of Appeal President pursuant to section 396(7) of the Administration of Criminal Justice Act, ACJA, 2015, was unconstitutional.

The apex court held that no statute in Nigeria empowered the Court of Appeal President to give vires to a Justice of the appellate court to return to the High Court to deliver judgement in a pending criminal trial, stressing that the Court of Appeal President, “acted ultra-vires his powers when she purportedly gave the authorisation” with respect to Kalu’s case.

But the source hinted that the 11 new justices of the Supreme Court would be inaugurated very soon as their services are very much required at the apex court.

S’Court to get full complement of 21 justices for the first time since 1999

Hopefully, when the justices resume office by the end of the month, the Supreme Court would have a full complement of 21 justices for the first time since 1999 with five representing the North-West; four of the justices representing the South-West geo-political zone of the country, three representing the South-East, another three representing the North-East, three others representing the South- South, and the remaining three representing the North-Central.

Whereas, Section 230 (2) of the 1999 Constitution allows the sitting President to appoint a Chief Justice of Nigeria, CJN and other justices of the Supreme Court not exceeding 21, the highest number of justices appointed to the Supreme Court ever was 20 since the constitution was promulgated into law.

Specifically, that history was made on November 6, 2020 when eight (8) newly appointed Justices of the Supreme Court were sworn into office, upping its membership from 12 to 20.